TCC judges have ventured into new territory with the launch of a mediation service. So will we make good mediators? That's for you to decide
Disputes arising out of construction activities continue to grow in number, size and complexity. This has been fuelled by the increase in the range of dispute resolution techniques available, and will continue until attempts to provide a generally contract-friendly and dispute-free environment are successful. There is little prospect of that happening in the immediate future.
There are now, broadly, five methods that are used by parties to resolve their disputes when these cannot be negotiated: litigation and arbitration, adjudication and early neutral evaluation, and mediation. The first two are relatively formalised and structured methods of achieving finality, the second pair are informal but structured methods of achieving either temporary or actual finality and the final method is the only informal and unstructured method of negotiating finality.
Judges have until now been involved in all these methods except mediation, either as participants in litigation and early neutral evaluation or in an appellate or supportive role in arbitration and adjudication. Until now, judges have not been involved in mediation, except on the fringes of a litigated dispute when ordering a temporary stay for mediation by a non-judge. This is about to change because the Technology and Construction Court judges in London have set up a judge-mediator scheme, with the approval of the lord chief justice, for any case proceeding in the TCC. This came into operation last Friday.
Mediation is as old as mankind. It is no more than a way of settling arguments using a third party to assist in brokering the peace. Perhaps Henry Kissinger did most to promote mediation as a means of dispute resolution in recent times with his public and successful rounds of shuttle diplomacy during the Nixon era. Kissinger's role was similar to the role of a mediator in a litigation context.
Any dispute that can be settled can be mediated. The mediator, acting in one or more ways, takes no part in the settlement, but plays a variety of parts in the process of settlement. The mediator can act as a go-between or messenger, as a prompt or goad, as a facilitator or evaluator and, first and foremost, as the catalyst to a complete or partial resolution of the dispute. The process of mediation is necessarily bound by three parameters.
First, mediation is entirely consensual; the parties own the process and they decide whether and when it will begin, how it will proceed and when and how it will end. Nobody can be forced to mediate - although a growing body of opinion is pressing for legislative change requiring mediation as a prelude to any other form of dispute resolution, which would then become a longstop for those disputes that cannot be resolved by mediation.
The second parameter is that the process in its entirety is, and must remain, confidential. Anything said in the process, written for the purpose of the process or communicated to anyone else involved must remain private, privileged and confidential during the mediation and for ever afterwards. Thus, all parties to any mediation are bound by this confidentiality requirement, usually by express agreement or, failing that, by necessary implied agreement.
The third parameter is that the mediator may only do what the parties have previously agreed that they are to do. The mediator may speak to all parties involved together or to individuals separately. What is said to the mediator may or may not be passed on to others. Whether the mediator merely flits from side to side, as facilitator, or expresses an opinion, or even on occasion issues a binding ruling, is entirely determined by what the parties jointly agree to. It is even possible for the parties' wishes to change and for the role of the mediator to be transformed in mid-mediation if all agree to this.
It follows from this that a mediator is acting in a dissimilar role to a dispute resolver. The status and role are different and a much wider range of personal skills are required. That is not to say that a judge or arbitrator need not get on with the parties, but when acting in these roles an individual is, and must remain, somewhat detached from them and can use the necessary formalities of the process to hide such attributes as shyness, diffidence, abrasiveness or a downright inability to communicate.
What is required, however, are qualities of decisiveness, firmness and leadership. The mediator, of course, needs these skills but in a muted form. What is particularly needed is an ability rapidly to gain confidence and trust from people, coupled with an easy, relaxing and charming manner. Another essential attribute is stamina, since a multiparty mediation can run for many, many hours and the mediator will rarely sit down or draw breath.
All judges were practitioners and have learned how to resolve disputes using all forms of negotiation. Moreover, it is possible for judges to have the human touch; each of us is also a parent, child, neighbour or friend
It can be seen that a judge is not, by training, experience or possibly temperament, a natural mediator. But then again this is not an inherited trait. All judges were practitioners once and, as such, have learned how to resolve and to facilitate the resolution of disputes using all forms of negotiation. Moreover, it is possible for judges to have the human touch; each of us is also a parent, child, neighbour or friend.
Some believe that if judges become involved in mediation, the dignity or aloofness of the judge will be compromised. That has not, however, been the experience of judge-mediation in other common law jurisdictions and ought not to be our experience here either.
With those generalisations behind us, let me come to the detail. TCC work, with its core subject matter of construction disputes, is an obvious candidate for piloting judge-based mediation in our court structure. There are some family court-based mediators, and mediation schemes as an adjunct to some county courts are well developed. However, until now, judges have not acted as mediators in court hours.
The scheme is available to parties to any dispute already in the TCC, or which has been transferred to the TCC from another court for the purpose of mediation. (It has not until now been possible for parties to a dispute outside the court system to obtain a judge-mediator's services.)
Parties that wish their TCC dispute to be mediated must make a mediation order staying the action for mediation by a judge-mediator. It will be for that judge to decide, with the full agreement of all parties, whether the case managing judge or another TCC judge should act as the mediator. Whichever one takes the job will have no further involvement in the dispute outside the mediation and will scrupulously ensure that there is no discussion or passing of information about the mediation to any judge involved in the dispute outside the mediation.
Once appointed, the judge-mediator will act as a mediator in all the ways that the parties to construction mediations have become used to. The process will begin with the parties signing a court settlement order. This is the agreement that defines the parties to the mediation and the proceedings being mediated and sets out the basic framework of the process that the judge-mediator will adopt. A standard form order has been drafted and is available from the TCC registry.
Essentially, the order provides that the venue, participants, documents and procedure will be decided by the mediator, taking into account the wishes of the parties and the circumstances of the case. The parties may ask the judge-mediator to express views, or may merely ask for the services of a facilitator.
The judge-mediator may see parties together or separately and may or may not pass on to other parties anything said by one party during a private meeting. The entire process is confidential. If a settlement is achieved, this will be set out in a settlement agreement. If a settlement is not achieved, the judge-mediator withdraws from all further involvement in the dispute and the litigation resumes with another case management judge for ultimate trial by different judge than the judge-mediator.
It is envisaged that any TCC case can be the subject of judge mediation. Clearly, some will be more naturally suited for judge-mediation but it is the parties that will decide whether to adopt this method of mediation and their reasons for choosing a judge-mediator may vary. The mediation can be conducted on the court premises in St Dunstan's House, and separate rooms and other facilities will be available. Alternatively, the parties can ask the judge-mediator to conduct the mediation in other premises arranged by them. The fee for the services will be modest, equivalent to the current judge-arbitrator daily rate of £1400.
The London TCC judges have now had some training in mediation techniques from four experienced mediators with Centre for Effective Dispute Resolution accreditation. It is not intended that judge-mediators will themselves become accredited but all will have had some experience and training in the required techniques. Parties may feel a little overawed in the presence of a judge-mediator. The provisional view among the TCC's wannabe mediators is that all should address and refer to the judge-mediator as "judge" when addressing or speaking to the judge-mediator to avoid any diffidence in having to strike up an acquaintance on first name terms with a judge whom that person has not previously met.
It is intended that the scheme will run initially until 31 July 2007 when it will be reviewed. The judges believe this is a small but significant enhancement of the court's service. It will be for the users to determine whether the service is needed and for the judge-mediators, armed with all appropriate closed questioning and empathetic techniques, to show whether the service is acceptable.
His Honour Judge Thornton is a judge of the Technology and Construction Court